John Nyanyuki Menge v Rhoda Mongina Ondoro

The ELC at Nyamira in its Judgement delivered found his agreements were valid for consent of Land Control Board but found he ought to have filed his claim within the statutory time lines for him to succeed in enforcing his agreement. Despite the Nyamira Court dismissing his suit he insists that the said court did not make any declaration that he was not entitled to the suit property as purchaser of value. He contended that the claimant is duty bound under section 83(d) and 86 of the Law of Succession Act to ascertain and pay all debts of the estate which includes his claim. He claimed that on 11th March, 2015, Justice Wakiaga directed the Plaintiff to render an account of the entire estate including the liabilities but they have failed to comply with the court order. 3. In Response the respondent filed a Preliminary objection dated 30.1.25 that this court lacks Jurisdiction to hear and determine this matter. The Preliminary Objection was based on grounds that this court cannot grant declaratory and compensatory based on the purported sale agreement as such is within the preserver of the ELC court. Also, that the grant was confirmed a long time ago and thus this court is fanctus Oficio. She contended to that the Applicant had admitted that he had filed several land cases raising similar issues raised in this Application which were finalised and dismissed by the Kisii Environment and Land Court the Court of Appeal and the Nyamira Environment and Land Court and thus his application is res judicata. 4. This court on 20th February, 2025 directed that the Preliminary objection be heard first. The court further directed the Preliminary objection be disposed of way of written submissions and directed the parties to file their written submissions within 7 days. From the record each party has filed their submissions. 5. The learned counsel for Applicant in his submissions dated 18th February, 2025 argued that the Preliminary objection was not based on a pure point of law and thus the same should be dismissed. He relied in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969) EA 696 and the case Joho & another v Shahbal & 2 others (Petition 10 of 2013) [2014] KESC 34 (KLR) (4 February 2014) (Judgment) to support his argument. He thereafter went on to reiterate the Applicants grounds in support of his application. 6. The learned counsel for the respondent on the other hand gave a lengthy history of the dispute between the parties in his bid to establish that this court has no jurisdiction to hear the application. The learned counsel revealed that the Applicant vide an application dated 25th June, 2010 sought to be enjoined as an interested party before the confirmation of grant. In his application he also prayed for the setting aside of the confirmation of grant proceedings pending the outcome of Originating Summons no. 119 of 2010 which was later issued a new number as ELC No. 1130 of 2016(OS). He disclosed that in the originating summons the Applicant had sought to be declared the owner of the suit properties by way of adverse possession. He disclosed further that this court vide its ruling dated 9th December, 2011 issued an order staying the confirmation of grant only in respect to the suit properties pending the hearing and determination of the originating summons by the Lands Court at Kisii. He contended that pursuant to the said order, the parties were to await the ruling of the ELC court as to who was the owner of the two parcels of land. The learned counsel went on to disclose that on 23rd October, 2019 Justice Mutungi delivered his judgement wherein he dismissed the Applicant’s claim. The learned counsel equally disclosed that the Applicant proceeded to file an application for stay of execution pending Appeal which application was dismissed J. M. Onyango J on 28th July, 2020. He disclosed too that Applicant filed an Appeal in the Court of Appeal at Kisumu where he also so sought for stay of execution which was dismissed. He disclosed further that the Applicant later withdrew the Appeal in the Court of Appeal and filed another suit at Nyamira ELC Court (ELC No. E005 of 2023) where he sought for specific performance of his sale agreements, a declaration that he is the owner of the suit properties, a declaration that there was constructive trust arising from the agreements as well as an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19776/eng@2025-07-09 2

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order directing the Deputy Registrar of the said court to sign the transfer forms. He also stated that said suit was equally dismissed by the court vide its judgment dated 21st November, 2024. For clarity the learned counsel attached all the Judgments and orders of this court, the two Land Courts and the Court of Appeal. 7. Based on the above history of the dispute, the learned counsel contended this court being a succession court lacks jurisdiction to intervene on an issue touching on the transfer the suit property to the Applicant more so after the Environment and land courts at Kisii and Nyamira having jurisdiction to deal with matters touching on land use, occupation and title already dismissed the Applicant’s claim over the suit properties. He underscored that the Applicant was seeking orders from this court through the backdoor contrary to the law and contrary to the judgements of court with competent Jurisdiction. Analysis and Determination 8. Having judiciously analysed Preliminary objection which is the subject of this ruling, the Application filed by the Applicant, all annextures supplied by all parties to support their positions and their written submissions I find that issues of determination are whether the preliminary objection is anchored on a pure point of law and if yes whether this court has jurisdiction to hear and determine this Application. 9. It is trite law that a preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say: “ .... A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 10. This position was restated by the supreme court in the case of Joho & another v Shahbal & 2 others (Petition 10 of 2013) [2014] KESC 34 (KLR) (4 February 2014) (Judgment) where the court observed as follows. “ To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696: “ a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration....a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 11. From the above decisions is outright that an issue of jurisdiction is a pure point of law which can determine the matter without having to consider the merits of the case. This Court is therefore satisfied that Respondent’s Preliminary Objection is based on a pure point of law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19776/eng@2025-07-09 3

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12. The Respondent in his Preliminary Objection called upon this court to make a determination whether it has jurisdiction to hear and determine this Application. It is trite law that jurisdiction is everything and without it the court cannot take one more step in the case. The locus classicus on jurisdiction is the celebrated case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited (1989) eKLR where the Court held as follows: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…” 13. Similarly, the Supreme Court in the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR pronounced itself thus; “ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….” would have no bearing on this matter. If it is not too late, the only window open to the respondent to pursue her perceived right over the estate property to the exclusion of the applicant is to appeal the decision of this court to revoke the original grant made in her favour” 14. The Respondent claims that this court has no jurisdiction to grant the declaratory and compensatory orders that the Applicant herein has sought in respect to his purported interests in the suit property. He contends that the court that has Jurisdiction to do so is the ELC Court. 15. Article 162 (2) the Constitution which establishes of the ELC Court provides as follows; “ (1) The superior Courts are the Supreme Court, the Court of Appeal, the High Court and the Courts mentioned in clause (2). (2) Parliament shall establish Courts with the status of the High Court to hear and determine disputes relating to— (3) 16. (a) ………………………………………; and (b) the environment and the use and occupation of, and title to, land. Parliament shall determine the jurisdiction and functions of the Courts contemplated in clause (2)”. Section 13 of the Environment and Land Court Act expounds on the jurisdiction of the ELC court as follows: “ (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes — https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19776/eng@2025-07-09 4

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(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.” 17. The Applicant in his application has, apart from seeking to be listed as a creditor/liability to the estate of the deceased, sought a declaration of this court that the land sale agreements dated 21st April, 1998 and October, 2004 are valid and enforceable as against the Respondents. He has also sought for orders of injunction against trespass by the respondents to the suit property. Further, he has also sought for compensation under Article 23(2) of the Constitution for violation of his right to property in relation to the suit property. 18. It is clear that the prayers sought relate to claim for use, occupation and title to the suit property and compensation for violation of rights to land which are within the Jurisdiction of the Environment and Land’s Court under Article 162 (2) (b) and Article 165 (5) (b) bars the High Court from usurping the powers of the ELC. This court lacks jurisdiction to deal with the application herein and the court must pen down. The preliminary objection dated 30.1.25 is upheld and consequently the application dated 19.12.23 is struck out. 19. Costs to the respondent. 20. The applicant herein should not file any other application herein without leave of the Court. 21. It is so ordered. T.A ODERA JUDGE 9.7.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF: Mr. Nyangoro for the Applicant N/A for the Respondent Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19776/eng@2025-07-09 5

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